Continuing his series discussing the impact on family law and practice of reported cases arising in other areas of law, David Burrows considers some of the implications of the drive for greater transparency in the family courts.
Common law: to make sense of the proceedings
Transparency of family courts is a real concern for Sir James Munby P. Law reports provide a litany of judgments as his developing guide to open court principles balanced against the confidentiality appropriate in many family proceedings. And he has issued specific guidance: Transparency in the Family Courts: Publication of Judgments: Practice Guidance, issued on 16 January 2014 (reported as Practice Guidance (Family Courts: Transparency)  1 WLR 230;  1 FLR 733, Fam D).
However, “transparency” – that is, permitting access to family courts to non-parties, especially the press as “watchdog2 for the public – will only truly happen if everyone has access to much the same information about a case as the judge. Added to what is heard in court, this information mostly consists of documents read by the judge, but not read out in court: for example witness statements, skeleton arguments and parties’ position statements, together called here “hearing documents’.
This article considers the common law on release of these documents to non-parties permitted to come into courts; and asks whether the law may be that similar arrangements should be made for family proceedings. (For more detail see Burrows, Evidence in Family Proceedings (2016, Family Law/LexisNexis) at Ch 13.)
Publication: a human rights balance
Article 6 is, however, relevant so far as it provides that “the press and public may be excluded from all or part of the trial” for a variety of reasons including “where the interests of juveniles” so require. The purpose of a public hearing is to guard against an administration of justice in secret and with no public scrutiny and to maintain public confidence…”
The balance to be struck where publication is concerned is between European Convention 1950 Art 8 (right to a private and family life) as against Art 10 (freedom of expression). Lord Steyn continued, at :
By section 12(4) of the Human Rights Act 1998 Parliament made special provision regarding freedom of expression. It provides that when considering whether to grant relief which, if granted, might affect the exercise of the Convention right to freedom of expression the court must have particular regard to the importance of the right.
And of the “interplay” between Arts 8 and 10, at :
First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test.
The balance is between private rights and the public interest in freedom of expression; though where publication is in issue HRA s 12(4) does not put press freedom before all other interests (PJS v News Group Newspapers Ltd  UKSC 26  AC 1081 at ). The rights of any children affected remain central to any balancing test (PJS (above) per Lady Hale at ).
Court documents: release of hearing documents
Court information which can be released to non-parties falls into three broad categories:
- Court documents – those for which a non-party can call as a matter of formality (Civil Procedure Rules 1998 (CPR 1998) r 5.4C; Family Procedure Rules 2010 (FPR 2010) r 29.12).
- Hearing documents – for which a non-party may apply (Guardian v Westminster (below)).
- Disclosed documents – released by one party to the other to comply with disclosure rules (formerly “the implied undertaking” not to release) but which are read out or referred to in court (CPR 1998 r 31.22(1)(a): reversing Harman v Home Office (see below)); or where the court permits release (r 31.22(1)(b)). The court may restrict publication (r 31.22(2)).
In R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening)  EWCA Civ 420,  QB 618 the Court of Appeal considered the question of whether to release hearing documents following open court proceedings. The decision, said Toulson LJ at , “breaks new ground in the application of the principle of open justice, although not… to the nature of the principle itself’. (On the open court principle see, on this blog, “To be heard in the dining hall…”: Scott 100 years on .) Toulson LJ continued, at  and :
 While the broad principle and its objective are unquestionable, its practical application may need reconsideration from time to time to take account of changes in the way that society and the courts work. […]
 In this case the question has arisen whether a district judge, who made two extradition orders on the application of the United States Government, had power to allow the Guardian newspaper to inspect and take copies of affidavits or witness statements, written arguments and correspondence, which were supplied to the judge for the purposes of the extradition hearings. They were not read out in open court but they were referred to during the course of the hearings. The judge, District Judge Tubbs, refused the Guardian’s application. She found that she had no power to allow it to do so for reasons which she set out in a careful judgment. The Divisonal Court (Sullivan LJ and Silber J) agreed…”
‘Evidence and argument should be publicly known’
In Guardian v Westminster (above) Toulson LJ at  drew attention to what Lord Scarman – “a thinker ahead of his time” – had said of press and public making sense of proceedings in Harman v Home Office  1 AC 280 at 316:
Reasonable expedition is, of course, a duty of the judge. But he is also concerned to ensure that justice not only is done but is seen to be done in his court. And this is the fundamental reason for the rule of the common law, recognised by this House in Scott v. Scott  A.C. 417, that trials are to be conducted in public. Lord Shaw of Dunfermline referred with approval, at p. 477, to the view of Jeremy Bentham that public trial is needed as a spur to judicial virtue. Whether or not judicial virtue needs such a spur, there is also another important public interest involved in justice done openly, namely, that the evidence and argument should be publicly known, so that society may judge for itself the quality of justice administered in its name, and whether the law requires modification. When public policy in the administration of justice is considered, public knowledge of the evidence and arguments of the parties is certainly as important as expedition: and, if the price of expedition is to be the silent reading by the judge before or at trial of relevant documents, it is arguable that expedition will not always be consistent with justice being seen to be done.
Lord Scarman was in the minority in Harman; but his view has now been adopted by the rule-makers in CPR r 31.22(1). Lord Bingham CJ pursued the point in SmithKline Beecham Biologicals SA v Connaught Laboratories Inc  4 All ER 498 at 511-512:
Since the date when Lord Scarman expressed doubt in Home Office v Harman as to whether expedition would always be consistent with open justice, the practices of counsel preparing skeleton arguments, chronologies and reading guides, and judges pre-reading documents (including witness statements) out of court, have become much more common. These methods of saving time in court are now not merely permitted, but are positively required, by practice directions. The result is that a case may be heard in such a way that even an intelligent and well-informed member of the public, present throughout every hearing in open court, would be unable to obtain a full understanding of the documentary evidence and the arguments on which the case was to be decided…”
Making sense of court proceedings
In Norfolk County Council v Webster  EWHC 2898 (Fam),  2 FLR 415 Munby J made a point similar to Lord Bingham’s:
 Today in the Family Division, as in [other courts], we have a system under which many matters that would in the days of purely oral advocacy have been spoken in court by counsel are now set out in written documents, prepared by counsel, which are pre-read by the judge before the hearing and which are therefore not read out in court during the hearing. […]
 But it is vital that this wholesome move in the direction of an enhanced degree of written advocacy… should not be allowed to damage the vital public interest in open justice. If the media are to be permitted to attend a hearing such as that which took place on 3 November 2006 (and, for the reasons I gave in Re Brandon Webster, Norfolk County Council v Webster  EWHC 2733 (Fam) 1 FLR 1146, it was very much in the public interest that they should be) then the very same public interest requires, in my judgment, that the media should be allowed to see [certain specific] documents…”
If not, Munby J continued, still at 
the ability of the public, to understand what took place during the hearing would be severely compromised. This outcome would defeat the very purpose of permitting the media to be present”.
Lord Bingham in SmithKlineBeecham continued,  4 All ER 498 at 512:
As the court’s practice develops it will be necessary to give appropriate weight to both efficiency and openness of justice, with Lord Scarman’s warning in mind. Public access to documents referred to in open court (but not in fact read aloud and comprehensively in open court) may be necessary, with suitable safeguards, to avoid too wide a gap between what has in theory, and what has in practice, passed into the public domain.
That is to say: if the public, especially the press, are to make sense of the proceedings and the process to be truly open, they must – with such safeguards as are necessary – have access to the hearing documents. And so the court held in Guardian v Westminster. Toulson LJ again (basing his decision “on the open justice principle” (para ; and see aslo NAB v Serco Ltd  EWHC 1225 (QB), Bean)) said  EWCA Civ 420,  QB 618 at :
In a case where documents have been placed before a judge and referred to in the course of proceedings, in my judgment the default position should be that access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong. However, there may be countervailing reasons….The court has to carry out a proportionality exercise which will be fact-specific. Central to the court’s evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others.”
Documents in children and other private family proceedings
This is all very well in open court cases; but what of family, especially children, proceedings which, by virtue of FPR r 27.10, “will be held in private” (save as directed by the rules or by court order)? Children proceedings were always treated as private (see eg Scott v Scott  UKHL 2,  AC 417: definition of open court principles; and a family case where the House of Lords said the hearing should unquestionably have been in open court). Privacy is preserved by European Convention 1950 Art 6(1); and by Administration of Justice Act 1960 s 12(1) (that it is not necessarily contempt of court to publicise private court proceedings save in children cases).
However, FPR r 27.10 privacy has been qualified to enable a group of individuals, other than parties to attend court, including to “duly accredited representatives” of the press/media and “any other person whom the court permits” (FPR r 27.11(2)). In In re X (A Child) (Residence: Rights of Media Attendance)  EWHC 1728 (Fam);  2 FLR 1467, Sir Mark Potter P summarised the then new rule – now r 27.11 – as for the press:
 … [to] exercise a role of ‘watchdog’ on the part of the public at large and to observe family justice at work for the purpose of informed comment upon its workings and the behaviour of its judges, they are unable to report in their newspapers or programmes the identity of the parties or the details of the evidence which are likely to catch the eye and engage the interest of the average reader or viewer.
In Appleton v News Group Newspapers Ltd  EWHC 2689 (Fam);  2 FLR 1, Mostyn J was dealing with an application by the press for reporting restrictions to be lifted for the ancillary relief hearing of well-known musicians (and see Mostyn J in DL v SL  EWHC 2621 (Fam);  2 FLR 552, also reported as L v L (Ancillary Relief Proceedings: Anonymity)  1 WLR 1259). Save to a very limited extent (eg photographs of arrival at court) a reporting restrictions order was retained. Mostyn J  EWHC 2689 (Fam) at  and , adopts Sir Mark’s “watchdog” role for the press:
 … Further the press are not allowed any access to documents whatsoever – see FPR r 29.12. This is only consistent with a watchdog role, because without the documents the press can hardly be expected to be able to report the case intelligibly or even-handedly.”
This passage, if correctly reported, is not easy to follow. It is not clear how exclusion from any documents (and FPR Practice Direction 27B para 2.3 supports this documents restriction view) can assist a ‘watchdog’ role. It is certainly not consistent with the views of Lords Scarman and Bingham above, and of Munby J in Norfolk v Webster (above).
In Appleton Mostyn J deals with the three types of documents categorised earlier. He conflates the principles involved. Rule 29.12 (see para  above) deals with documents “filed or lodged in court”; but in terms it enables the court to give permission for inspection or copying of documents. Is not what the judge says to the press unfair? Further, r 29.12 release would be consistent with cases such as Guardian v Westminster and NAB v Serco Ltd (both of which postdate PD27B para 2.3).
Understanding family proceedings
Mostyn J refers to documents exchanged on disclosure (and now covered by CPR r 31.22(1)); though it is unclear why this is relevant to the issue before him. He does not refer to hearing documents (as did eg Munby J in Norfolk v Webster). Yet transparency surely requires that the person to whom a private process is made “transparent” can make sense of what is going on? As Munby J pointed out in Norfolk v Webster (paras  and ) if the press, and through them the public, are to follow a case they must see copies of hearing documents – that is a defined selection of suitably redacted statements, skeleton arguments and position statements.
If hearing documents are to be released it will be on court-controlled terms as to confidentiality for parties (see eg X, Y and Z (Disclosure to the Security Service)  EWHC 2400;  4 WLR 153 (Fam), McDonald J). As the next stage of Sir James’s concern for transparency, FPR r 29.12 (as interpreted in Appleton v Gallagher) are surely due for review; and the aptness of PD 29A para 2.3 to the common law is perhaps open to question? Those permitted to attend family courts may then be permitted to read selected hearings documents to make sense of the case.
David Burrows is a solicitor advocate, trainer and writer. His book Evidence in Family Proceedings is published by LexisNexis/Family Law this month.
He writes a blog at DB Family Law